Date: 20000726
Docket: IMM-5317-99
BETWEEN:
MOHAMMAD KAFEEL QAZI
| Applicant |
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario
Wednesday, July 19, 2000)
HUGESSEN J.
[1] This case raises squarely the issue of the content of the duty of fairness owed by the Minister in forming a "danger" opinion pursuant to the provisions of subsection 70(5)1 of the Immigration Act.
[2] The applicant was the subject of a danger opinion given on behalf of the Minister by a person mandated by her. That opinion was reached by the person who formed it on the basis of two lots of material. The first being what I think may be conveniently called a field report prepared by an Immigration Officer in the field who had notified the applicant of the intention to seek the Minister"s opinion and obtained submissions and documents from the applicant; these were added to other submissions and documents from the applicant"s file and elsewhere and the entire package was forwarded to Ottawa. That is a very substantial document, it runs to almost 300 pages in length. The second document that was placed before the decision maker is what I may call a headquarter"s report, it is much more summary in nature, it is about 6 pages long, was prepared obviously by a person of more senior rank in Ottawa and purports to summarize what was in the field report. Those two reports as I say, were what was put before the decision maker. Neither of them was communicated to the applicant prior to the decision being made. The issue, and in my view the only issue in this case, is whether the duty of fairness required that that be done.
[3] The case is very similar in fact indistinguishable from the decision of Mr. Justice Gibson in Bhagwandass v. Canada2. In that case, he decided that the previous jurisprudence of this Court and particularly the decision of the Court of Appeal in Williams v. Canada3 had been overtaken by the decision of the Supreme Court of Canada in Baker v. Canada4 and that there was a fairness requirement laid upon the Minister in reaching the decision that a person constituted a danger to the people of Canada; he held that that fairness requirement imposed on the Minister the duty of revealing to the applicant the documents which in that case were similar to the ones I have just described. Bhagwandass has been followed or quoted with approval on at least two occasions in this Court, both very recent in Andino5 and Gonzalez6. It is also been implicitly criticized or not followed in two other decisions: Siavashi7 and Tewlde8
[4] There is also, I think, more than some relevance in looking at the decision of the Court of Appeal in Haghighi v. Canada9 because that decision shows the Court of Appeal changing direction very dramatically from the position which it had previously adopted in a number of decisions (at least one of which was written by me) with regard to the content of the duty of fairness in H & C decisions.
[5] The respondent asks me to find that Bhagwandass was wrongly decided. That request is made in the wrong place, it is not for me to make a decision of that sort and the Bhagwandass case is presently in appeal and we will in due course have the wisdom of the Court of Appeal on the matter. I prefer to approach the matter as not being governed by any particular decision in this Division but rather as res integra in the light of the teachings of the Supreme Court in Baker and other cases in order to determine the content of the duty of fairness.
[6] I look at the statutory provisions for that decision, I look at both the text and the context and it seems to me quite clear that what we are talking about here is a ministerial decision which is to be made at a high, virtually the highest level, in which there is a very large component of administrative and policy considerations and a very limited number of objective criteria.
[7] It is, however, I think also quite clear, that it is a decision which is important to the person who is made the subject of it. The respondent suggests that Mr. Justice Gibson in Bhagwandass overestimated the importance of the decision and overstates the effect of the judgment in Baker upon the previous judgment of the Court of Appeal in Williams. I have no opinion on that. But I think it is tolerably clear that Williams did not find that the danger opinion was not an important decision, it assessed the importance of that decision rather lower than that of some other decisions which may be made under the Immigration Act. But it is nonetheless a decision of importance. I think that now, in the light of Baker and of the very clear message that the Supreme Court has sent to us as to the nature of the duty of fairness in decisions which were previously thought to be wholly discretionary and have no fairness content at all or very minimal, fairness content, it is quite clear that we must view the danger opinion as being one which has serious consequences for the person who is the subject of it. It removes from that person a statutory right of appeal, open-ended, to a body which is independent, autonomous and quasi-judicial. If it replaces that right at all, it is by a right to apply for leave to seek judicial review on limited grounds and a right to apply for a wholly discretionary executive remedy under humanitarian and compassionate considerations.
[8] Of course, the remedy which is taken away is one which permits the submission of new evidence and permits the ongoing control of the appeal division if it should decide to suspend deportation for a period of time in order to place the potential deportee on a sort of probation. None of that is explicit in the provisions or the remedies which are substituted for it.
[9] I have no doubt in my mind that the decision is therefore of importance. I equally have no doubt in my mind that at a minimum, and there is nothing world shaking in this, the duty of fairness requires that any person who decides anything of substantial importance to the rights of another person must at the very least allow that person to know the basis upon which that decision is to be reached, to know what materials are to be placed before that person. Put shortly, I think the duty of fairness in this case required the Minister to reveal to the applicant the content both of the field report and of the headquarter"s report.
[10] Some time was spent by counsel on both sides discussing whether both reports were in fact fair and balanced. In my view, that is beside the point. We are concerned here with process and even if both those reports were as was strongly argued to me by counsel for the respondent as fair, balanced and impartial as they could be, that would not meet the requirement of fairness. It should not be necessary to repeat here Lord Hewart"s well known aphorism about the necessity of justice appearing to be done.
[11] That is enough in my view to dispose of the case, I just want to mention briefly two other points. One is that it was argued that the decision should be set aside because no reasons were given, once I have concluded as I have that there was a failure in the duty of fairness prior to the decision being made, I do not think it is necessary to reach the question of reasons. There was also a good deal of debate about the standard of review, since I am not reviewing the decision on its merits, I do not propose to enter into that. Finally, of course, there was a good deal of debate as to the reasonableness or otherwise of the decision and that too is, in my view, irrelevant for the reason just stated.
[12] I propose to allow the application and to set aside the decision and remit the matter to the Minister for redetermination.
"James K. Hugessen"
Judge
Ottawa, Ontario
July 26, 2000
__________________| 70(5) Where limited right of appeal - No appeal may be made to the Appeal Division by a person described in subsection (1) or paragraph (2)(a) or (b) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be (a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (C.2) or (d);b) a person described in paragraph 27(1)(a.1); or(c) a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed. | 70(5) Restriction -- Ne peuvent faire appel devant la section d'appel les personnes, visées au paragraphe (1) ou aux alinéas (2)a) ou b), qui, selon la décision d'un arbitre:a) appartient à l'une des catégories non admissibles visées aux alinéas 19(1)c), c.1), c.2) ou d) et, selon le ministre, constituent un danger pour le public au Canada;b) relèvent du cas visé à l'alinéa 27(1)a.1) et, selon le ministre, constituent un danger pour le public au Canada;c) relèvent pour toute infraction punissable aux termes d'une loi fédérale d'un emprisonnement maximal égal ou supérieur à dix ans, du cas visé à l'alinéa 27(1)d) et, selon le ministre, constituent un danger pour le public au Canada. |
2 Bhagwandass v. Canada (M.C.I.), (1999) IMM-6496-98 (F.C.T.D.)
3 Williams v. Canada (M.C.I.), (1997) 212 N.R. 63 (F.C.A)
4 Baker v. Canada (M.C.I.), (1999) 174 D.L.R. (4th) 193
5 Julio Ernesto Castro Andino v. Minister of Citizenship and Immigration, (June 27, 2000), IMM-2208-99
6 Wilfredo Aburto Gonzalez v. Minister of Citizenship and Immigration, (May 23, 2000), IMM-2333-99, IMM-2334-99
7 Siavashi v. Minister of Citizenship and Immigration, (July 12, 2000), IMM-1942-99
8 Tewelde v. Minister of Citizenship and Immigration, (April 28, 2000), IMM-2335-98
9 Haghighi v. Canada (M.C.I.), (June 12, 2000) A-587-99 (F.C.A.)